Cross Party Reference Group Members Panel
Te Ururoa Flavell, MP for Waiariki
EmpowerNZ : Drafting a Constitution for the 21st Century
Wednesday 29 August 2012; 6pm
Banquet Hall, Beehive Parliament Buildings, Wellington

Last night I gave some background to how the Māori Party secured the agreement to have this discussion. We have been long calling for open and informed debate for constitutional change.

It should be news to no-one that tangata whenua have been asking for a review of the constitutional arrangements of this land for decades.

Yesterday Peter Dunne talked about the Inquiry to review New Zealand’s existing constitutional arrangements which took place in 2004/05.

That inquiry received submissions from the Treaty Tribes Coalition for example who said “that the greatest shortcoming of New Zealand’s current constitutional arrangements is their failure to fully recognise the fundamental significance of the Treaty of Waitangi”. It recommended “that the review should consider, as a key issue, how—not whether—the guarantees enshrined in the Treaty can be given greater legal and constitutional protection”

Te Rūnanga o Ngāi Tahu also recommended that Constitutional reform is needed to answer the call from both Māori and non- Māori to settle the Treaty in the constitutional order, and to ensure that the constitution provides for a structure and functioning of government in which all New Zealanders have confidence.

No action was taken on the submissions on making the constitution Treaty-based.

But today – in this panel – we have a chance to ensure those calls are heard.

Professor Burrows confirmed that we should not and could not have that debate without the Treaty discussion.

The Question we are debating is whether the description of our constitution, as set out in the Cabinet Manual, is an adequate compass for the 21st century.
If we take it that the Treaty of Waitangi is a document which sits at the heart of how you operate and what drives you in the process of law making, a simple test we sometimes use is to see how many times the word Treaty or Tiriti or Māori or Tangata whenua is used.

In section of “main features of a constitution”, the Treaty of Waitangi is confirmed as being regarded as a founding document of our nation

In the section, “sources of the Constitution” the TOW is a heading and we have Article two and Article three mentioned, we have a statement about “Māori belonging”, a statement about “Māori institutions” and the “Treaty of Waitangi of two Parties”

Then it appears finally in the section Individuals, autonomy and majority rule.

Last night I believe I said that I wasn’t sure if we had a written constitution. The manual has clarified that by saying that the constitution
• “is to be found in formal legal documents, in decisions of courts and in practices.
• “a constitution is about public power, the power of the state. It describes and establishes the major institutions of government”.

If we accept that Te Tiriti o Waitangi is the founding document of the nation and is the bridge to nation building, then we have a rich archive of legal history, of court decisions and practices, which are based on consolidating that respect and that acknowledgment, of the pivotal role that the Treaty has in shaping our nation.

The Cabinet manual also states that the constitution “reflects and establishes NZ is a monarchy, that we have a parliamentary system of government and that it is a democracy”.

For Māori, the fundamental significance of the Treaty relationship is that it was signed between the Crown – as represented by the Monarchy of the day, Queen Victoria – and by iwi leaders throughout the land.

Some of you may recall a direct descendent of Queen Victoria, Queen Elizabeth II , articulating her own view of how far we have come as a nation on Waitangi Day, 1990, when she said:

“Today we are strong enough and honest enough to learn the lessons of the last 150 years and to admit that the Treaty has been imperfectly observed. I look upon it as a legacy of promise”.

It is an admission that iwi have long upheld – that the Crown has failed to live up to the legacy of the treaty which guaranteed the continuance of Māori authority and sovereignty, of tino rangatiratanga, over our lands, villages and everything else we treasured – including te reo rangatira, and our cultural customs.

The system of Parliament allows for currently seven seats out of one hundred and twenty. There is a history that says that Māori will struggle in the recognition of rights in this environment.

While the manual refers to Te Tiriti o Waitangi as a key source of our constitution it then reduces the impact of this statement by saying that the treaty “may indicate limits in our policy on major decision making”.

The Manual states that “the law may sometimes accord a special recognition to Māori rights and interests (in Article 2) and that Māori belong, as citizens, to the whole community (Article 3)”.

And as for democracy… well, that has not helped either.

And that’s about it.

So I come back full turn - to remind us all exactly why the process of constitutional review I referred to yesterday, is so vital in our future as a nation. If we are really committed to fleshing out the legacy of promise that the Crown referred to nearly quarter of a century ago, we need to be bold enough to inform ourselves of the vital importance of the Treaty as a prescription for partnership; as the basis for which tangata whenua and tangata tiriti live together and plan for our future.

You are a part of a process that may someday change all of that.

ENDS

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